Director of Public Prosecutions v Le
[2015] VCC 1559
•6 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-00040
| THE QUEEN |
| v |
| THI QUYEN LE |
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| JUDGE: | HIS HONOUR JUDGE COISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 November 2015 |
| DATE OF SENTENCE: | 6 November 2015 |
| CASE MAY BE CITED AS: | DPP v Le |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1559 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms S. Coidan | |
| For the Accused | Mr J. Owen |
HIS HONOUR:
1Thi Quyen Le, could you please stand up. Thi Quyen Le, you have been found guilty by a jury of your peers of one charge of conspiracy to commit an offence of importing a commercial quantity of a border controlled drug. This offence carries the maximum penalty of life imprisonment and/or a pecuniary penalty of up to 7,500 penalty units.
2You pleaded not guilty and conducted a trial which is your right. Whilst you are not to be punished in any way for doing so, equally you cannot expect the benefit that would attach to a plea of guilty or any indication of remorse that such a plea may have demonstrated.
3The general circumstances surrounding this offence are as follows. Between 16 August 2012 and 20 March 2013, you conspired with An Lanh Vo, Suky Lieu, Van Thi Hong Nguyen and others to import a commercial quantity of a border controlled drug, namely heroin, into Australia from Vietnam. Pursuant to the conspiratorial agreement, heroin was to be imported on an ongoing basis as and when it was available to the Vietnamese suppliers and sought by the Australian buyers and various importations using recruited couriers to bring drugs into the country were planned and carried out.
4Suky Lieu and Vo were principal, Australian-based participants in the conspiracy. The respective acts of Suky Lieu, Vo and Nguyen are described in detail in paragraphs five to eight of the Summary Of Facts For Sentence, Exhibit 1.
5You were a friend or associate of Vo and in general terms you participated in the conspiracy by assisting Vo to recruit and manage couriers. You acted in accordance with Vo's instructions and directions. Throughout the period of the conspiracy you and co-conspirators regularly communicated with each other by phone. You and others often communicated using a code and multiple phone numbers, usually subscribed in false names to avoid detection.
6The conspiracy can be divided into three identifiable periods. The first was from August to October 2012; the second from November 2012 to January 2013; and the third from about the middle of January 2013 to 20 March 2013.
7You were not involved in the first period. The first evidence of your involvement was during the second period at or about the time Vo recruited the courier Truong after meeting him at Crown Casino in late November 2012. From that time you were actively involved in the conspiracy until it was frustrated by the arrest of Vo, Suky Lieu and Nguyen.
8The activities involving you and your co-conspirators from late November 2012 are described in detail in the Summary Of Facts For Sentence. Your acts have been summarised in paragraph 20 of the Prosecution Sentence Submissions contained in the folder of plea materials provided at the plea hearing. It was not in dispute that you did these acts in pursuit of the conspiracy, except for the allegation that you travelled to Vietnam to meet Truong.
9It was submitted on your behalf that your travel to Vietnam was prearranged and due to the need to visit your sick mother and investigate an overseas adoption. Whilst I accept that your mother did die in March 2013 and you did investigate the feasibility of adopting a child whilst you were in Vietnam I do not accept the submission made on your behalf that your trip to Vietnam was prearranged for innocent purposes and you were the victim of Vo leveraging an opportunity arising from this trip to take advantage of you and your presence in Vietnam to further the conspiratorial objective, namely facilitating the importation of heroin.
10I have arrived at this conclusion for these reasons. 1) There is no evidence that your trip was prearranged for innocent purposes; 2) you did intentionally join this conspiracy, therefore you were aware of Vo's drug business; 3) you were involved in the conspiracy both before and after your travel to Vietnam; 4) you had contact with Vo and were involved in activities with Vo both before and after your travel to Vietnam; 5) your conduct in Vietnam, in particular your dealings with Truong, was very significant; and 6) your phone records downloaded on 18 February 2013 were also highly relevant.
11I am satisfied beyond reasonable doubt that you were a trusted associate of Vo and you travelled to Vietnam pursuant to this conspiracy to meet Truong in order to arrange for him to act as a drug courier for Vo. I accept the prosecution summary at paragraph 20 of the Prosecution Sentence Submissions that you did the following acts in pursuit of the conspiracy.
1) Attended the Crown Casino with Vo when Truong was initially approached.
2) Attended a subsequent meeting between Vo and Truong where Vo proposed that Truong could clear his debt by acting as a drug courier.
3) Spoke with Truong on the telephone in Vo's stead after Truong made telephone contact with Vo following the threatening note which had been left at the Truong family home.
4) Instructed Truong to remain at his hotel in Vietnam and arranged to meet with him at that location.
5) Travelled to Vietnam to meet with Truong in order to arrange for him to act as a drug courier for Vo.
6) Met with Truong at his hotel, took him by taxi to a new hotel and checked in.
7) Waited with Truong in the new hotel room until another associate arrived with the drugs and underwear concealments.
8) Provided Truong with the underwear, cylinders, and concealed heroin, and instructed him to wear the underwear and insert the cylinders into his anus.
9) accompanied Truong to the airport in Vietnam to supervise his check-in and departure.
10) Provided Truong with his plane ticket to travel back to Australia.
11) Maintained contact with Vo to update her about the progress of Truong's importation.
12) Remained in Vietnam after Truong's departure in order to further carry out tasks to arrange and facilitate management of Vo's couriers and their planned importations.
13) Contacted and met with Vo's associates and couriers in Vietnam in order to progress importation plans as requested by Vo.
14) Participated in numerous coded telephone conversations and SMS exchanges with Vo.
15) Met with Vo's drug customers in Australia following your return from Vietnam, and communicated orders and requests from those persons about the supply of drugs to Vo.
16) Arranged for the remittance of money to Vietnam on behalf of Vo in order to facilitate courier importation arrangements.
17) Met in person with Vo and Lieu on at least one occasion for the purpose of discussing important arrangements.
And 18) together with Vo and Duong, attended the Melbourne International Airport on 15 March 2013 to pick up the courier Pham upon his return from Vietnam.
12As I have stated I find that you were a trusted associate of Vo. You were responsible for arranging and managing couriers that had been recruited by Vo. You carried out tasks under the direction and instruction of Vo. You telephoned and text messaged Vo and others, and met with Vo and others in person to carry out your tasks. You carried out tasks and performed your role in Australia and also in Vietnam. You joined an existing conspiracy and thereafter participated in it for four to five months until the conspiracy was brought to an end by the arrest of others.
13I accept the description of the organisational hierarchy or structure of the conspiracy described by the prosecution, namely a structure analogous to a wheel type conspiracy. At the hub were Lieu and Vo. Emanating from the hub were various "spokes". Nguyen's position was akin a "spoke" in the wheel, branching off from Lieu and Vo at the hub.
14Your position was similarly akin to a "spoke" in the "wheel" branching off from Vo. You did not have any involvement with Nguyen, and only had peripheral involvement with Lieu through Vo. I find that you occupied a position that was subordinate to Vo, and I find that in terms of your seniority in respect of level of involvement in the conspiratorial hierarchy, your position was below that of Lieu, Vo and Nguyen.
15A number of importations were arranged and carried out. During the first period, various attempts to import drugs were frustrated for one reason or another.
16Three successful importations occurred in the second period. On 8 December, Dai and Ly arrived at Melbourne on board a Vietnam Airlines flight from Vietnam. Dai was apprehended at the airport and subsequently discovered to be in possession of 218 grams of pure heroin. Ly was not apprehended at the airport. She passed on the heroin that she had brought into the country. Victoria Police subsequently seized 143.1 grams of pure heroin from an address in Sunshine West. This was the heroin that had been brought into the country by Ly.
17On 28 January 2013, Truong arrived at Melbourne on board a Vietnam Airlines flight from Vietnam. He was apprehended at the airport and subsequently discovered to be in possession of 559.5 grams. I just repeat that, 559.5 grams of pure heroin.
18On 15 March 2013 a further courier Pham arrived at Melbourne on board a Vietnam Airlines flight from Vietnam. Pham was subsequently discovered to be in possession of 577.1 grams of pure heroin.
19Whilst there were four identifiable importations, it is clear that numerous other importations were planned, arranged and organised. The total pure amount of heroin successfully imported pursuant to the conspiracy was 1497.7 grams. You are, however, to be sentenced on the basis that you entered into an agreement to import a commercial quantity of heroin. A commercial quantity of heroin is a pure amount of 1.5 kilogram and above.
20I have taken the following matters into account in mitigation of sentence. I have been told something of your personal circumstances. You are 52 years of age, having been born on 5 October 1963 in Vietnam. You were the youngest of four children. Your father died when you were six years of age. You had little education, leaving school when you were eight years of age. In about 1995, you suffered serious burns in a house fire.
21You had a short-term marriage in Vietnam. You married your current husband in 2008. You emigrated to Australia. You are a Vietnamese citizen but you have permanent residency status in Australia. It is submitted on your behalf that you will probably be deported, and this will make imprisonment harder to endure. This is therefore a factor in mitigation.
22The prosecution has submitted that your risk of deportation is speculative. It cannot be quantified and therefore cannot be a factor in mitigation. Both parties made detailed written submissions on this issue and the prosecution have filed a notice of additional evidence and directions under the Migration Act. I accept the defence submissions on the Migration Act and the binding Court of Appeal authority of DPP v Zhuang [2015] VSCA 96.
23I am satisfied in all the circumstances that you can expect with some certainty to be deported upon your release from custody. As this prospect is capable of quantification, as I have just found, I am satisfied this is a factor in mitigation.
24You have had employment in Australia working for an insulation company between 2011 and 2013, and you have worked as a sewing machinist and packer. You do not drink alcohol, smoke or use drugs. You have a limited command of English.
25You have been the principal carer for your 83-year-old mother in law who suffers from osteoporosis, high cholesterol, high blood pressure, incontinence and dementia. Since you have been remanded in custody your husband has taken over responsibility for caring for his mother. Your husband has been attending counselling to assist him to cope with his distress and depression following your incarceration.
26A report from Mark Gordon dated 12 October 2015 was tendered on your behalf. Mr Gordon describes your husband's attendance at 16 counselling sessions, his symptoms and treatment. Mr Gordon has stated:
"In the future our work will continue to focus on Mr Tran maintaining his effort to support his wife and to support his effort to sustain himself through this family crisis. Ideally, once the current matter before the court has been attended to, Mr Tran will be able to recover some sense of hope and possibility for the future, and to resume work to complete a mechanic apprenticeship."
27It was submitted on your behalf that I ought take into account hardship to family pursuant to s.16A(2)(p) of the Crimes Act 1914. I do not accept any hardship to family to be of an exceptional nature. It is therefore not a factor in mitigation. Your husband is able to care for his mother. Your husband is understandably distressed by your predicament. His reaction is not surprising, nor is it unusual. Rather it is, as I have said, understandable, and he is receiving appropriate treatment.
28I do, however, take into account as a factor in mitigation, your appreciation of the hardships suffered by family as a result of your incarceration. This will increase the burden of imprisonment.
29You have no prior convictions. I sentence you as a person of previous good character. I have had regard to the numerous references and testimonials tendered on your behalf. It is apparent from this material that you have done much good work in your community, such as working in a kitchen of a monastery, helping with other activities.
30You have been a kind and helpful community member. You are also described as hardworking and very friendly. You have assisted others by driving people, especially the elderly. You are dedicated to your family. You perform volunteer work. You regularly attend religious services and contribute to the activities of your congregation.
31Two further expert reports were tendered on your behalf. Dr Lester Walton, psychiatrist, examined you on 28 September 2015 and he has provided a report date 6 October 2015. It is his opinion that you are suffering from a major depressive disorder. He has made the following observation:
"However I believe it is fair comment that Mr Le is enduring incarceration as more onerous than others, because of her current, fairly intense, depressive disorder."
32This comment was in respect of the application of the principles enunciated in Verdin's case.
33Sandra Nguyen, psychologist, has provided a report dated 20 September 2015. She has expressed the opinion that the appropriate diagnosis of your mental condition is major depressive disorder with melancholic features; severe generalised anxiety disorder; and Post-Traumatic Stress Disorder.
34It is submitted on your behalf and accepted by the prosecution that limbs five and six of the principles enunciated in Verdin's case apply. They are:
"Five, the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. Six, where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."
35I agree with this analysis and these submissions of the parties and I have taken into account limbs five and six of the principles enunciated in Verdin's case. I assess your prospects of rehabilitation as being good.
36Against these matters in mitigation, however, your actions were very serious indeed. I assess your moral culpability as being high. You have joined an existing conspiracy. You were involved over an extended period of about four months. Your involvement was both extensive and protracted. Your activities were in both Australia and Vietnam. Your role and involvement in the conspiratorial organisation was significant, although as I have already stated I accept that in terms of position within the hierarchy you were in a lower position than Suky Lieu and Vo, the Australian-based principals, and Nguyen. I find your activities, which I have described in detail, to have been important.
37I have had regard to the principle of parity. I have taken into account the respective roles, antecedents and prospects of rehabilitation of co-offenders. I sentenced Suky Lieu and Nguyen. I have had regard to the sentences imposed on the couriers.
38It is important to note that all others entered pleas of guilty. As I have already stated, you pleaded not guilty and conducted a trial which is your right, and I repeat that whilst you are not to be punished in any way for doing so, equally you cannot expect the benefit that would attach to a plea of guilty or any indication of remorse that such a plea may have demonstrated.
39It is also important to note the offence for which I am sentencing you and its maximum penalty of life imprisonment. I was provided with a table of comparative cases. Neither party addressed me on this material and I have found it to be of limited assistance. I have already referred to the number of importations, quantity of heroin actually imported and scope of the conspiracy. Your motive was financial gain although there is no evidence of actual profit.
40As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence. Specific deterrence is relevant. General deterrence is also of considerable importance in a case such as this. This type of offending must be discouraged. I must take into account the need to ensure you are adequately punished for this offence, and I must manifest the community's denunciation of your conduct.
41I have taken into account s.16A(1) of the Crimes Act 1914, which provides:
"In determining the sentence to be passed or the order to be made in respect of any person for a federal offence, the court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence."
42I have taken into account the matters referred to in s.16A(2) as are relevant. I have concluded that I have no alternative but to sentence you to a term of imprisonment (see s.17A).
43Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows. You are convicted and sentenced to ten years' imprisonment.
44The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist. For that reason, it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement, and in turn, rehabilitation under conditional supervision.
45In all the circumstances, I direct that you serve a minimum term of seven years before becoming eligible for parole.
46I declare that the period of time you have spent in custody is 163 days, which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
47It is necessary for me to explain the sentence I have imposed. The sentence is ten years' imprisonment. You must serve seven years before being released on parole. There is 163 days of presentence detention which is to be reckoned as time already served.
48No other matters? No. Thank you for your help. If the prisoner can be removed.
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